Glenn Ray BROWN et al., Petitioners, v. EDWARDS TRANSFER COMPANY, INC., Respondent, 764 S.W.2d 220

GONZALEZ, Justice. This is a wrongful death action which presents two issues: (1) whether the illegitimate children of a male decedent may recover under the Texas Wrongful Death Act; and (2) whether it was reversible error for the trial court to have refused to submit a question as to the decedent’s alleged contributory negligence. Although the court of appeals held that the children could recover under the Wrongful Death Act, it reversed and remanded the cause because the trial court had erred in not submitting the issue of contributory negligence to the jury. 740 S.W.2d 47.

We affirm the judgment of the court of appeals. Robert L. Jenkins was an employee of Acme Paper Stock Company. On August 24, 1981, Jenkins was riding on a freight elevator when the cable broke. The elevator hoist motor fell on Jenkins which resulted in his death. The hoist motor and lifting cables were installed by employees of Edwards Transfer Company. Edwards’ employees used steel cables to mount the hoist from an I-beam which ran along the ceiling in Acme’s warehouse. The employees, however, did not use “softeners” to protect the cables against the sharp edges of the beam.

Acme intended that the platform be used solely as a freight elevator. Accordingly, Acme employees were warned not to ride the platform as it was not safe for use as a personnel elevator. Glenn Ray Brown, Ricky Brown, and Kay King, Jenkins’ illegitimate children, brought a wrongful death action against Acme and Edwards. Mary Jenkins, the decedent’s mother, intervened as a party plaintiff. Acme’s workers’ compensation carrier, U.S. Fire Insurance Company, also intervened to recover benefits paid to Mary Jenkins. The trial court rendered a

summary judgment for Acme against the claims of Mary Jenkins and U.S. Fire. In addition, the decedent’s illegitimate children settled their claim against Acme. Accordingly, Acme is not a party to this appeal. The case against Edwards proceeded to trial under the theories of negligence and gross negligence. The jury found that the plaintiffs (Petitioners) were the biological children of the decedent. The jury also found that Edwards was negligent in failing to use cable “softeners” when installing the hoist and that this negligence proximately caused Jenkins’ death.

The jury further found that Edwards’ actions constituted gross negligence and that the plaintiffs suffered damages. The trial court rendered judgment for the plaintiffs in accordance with the jury verdict. Illegitimate Children — Cause of Action The first issue is whether a male decedent’s illegitimate offspring are his “children” for the purpose of bringing a cause of action under the Texas Wrongful Death Act.

See TEX.CIV.PRAC. & REM.CODE ANN. §§ 71.001-011 (Vernon 1986); see also, Note, Illegitimates and Intestate Succession in Texas: Developments in the Law, 16 HOUS.L.REV. 740, 741-42 (1979) (it has. long been recognized in Texas that a child is illegitimate only to the putative father; a child’s circumstances of birth do not affect its ability to inherit from its mother). Edwards makes two arguments on this issue. First, it asserts that the children have no standing to bring a cause of action for the wrongful death of their biological father.

Second, assuming the illegitimate children have standing under the Wrongful Death Act, Edwards argues that there is no evidence that they are Jenkins’ biological children. The court of appeals held that Jenkins’ illegitimate children were not required to comply with the requirements of

section 42(

b) of the Probate Code in order to recover under the Wrongful Death Act. 740 S.W.2d at 49. The court of appeals addressed both the no evidence and insufficient evidence points in its previously unpublished opinion, holding that sufficient evidence exists to support the jury findings that the children in question are Jenkins’ biological children. Jenkins married Bonnie Scarlett in October of 1954 and there is no indication they were ever divorced. As far as can be ascertained from the record, Bonnie Scar-lett gave birth to one son while married to Jenkins. That son’s name is Robert Lee Jenkins, Jr.

Another woman, Eva Ward, testified that she had sexual relations with Jenkins which resulted in the birth of Kay King in 1953. Jenkins subsequently lived with another woman, Cora Lee Brown, and they produced two offspring. Glenn Ray Brown was born in 1957, and Ricky Brown was bom in 1958. Jenkins admitted to third parties that he was the father of Kay King, Glenn Ray Brown, and Ricky Brown. After the accident, these persons brought a cause of action for the wrongful death of their father. Robert Lee Jenkins, Jr. did not join in this cause of action.

Recovery under the Texas Wrongful Death Act is limited to an exclusive class of persons. Only the “surviving spouse, children, and parents of the deceased” are authorized to bring a suit under the Act. See TEX.CIV.PRAC. & REM.CODE ANN. § 71.004(a) (Vernon 1986). Therefore, the critical question for Jenkins’ children is whether the term “children,” as set forth in the statute, applies to both legitimate and illegitimate children. The Act itself does not provide a definition for the term “children.” Edwards urges this court to interpret the word “children” under the Wrongful Death Act in accordance with the

definitions set forth in the Probate Code.

Section 3 of the Probate Code provides that except where the contrary is expressly stated, the unrecognized illegitimate child of a father is not the “child” of the putative father for the purposes of the Probate Code. TEX.PROB. CODE ANN. § 3(b) (Vernon 1980).

Section 42(

b) of the Probate Code provided, at the time of this litigation, that the child of the putative father becomes a “child” of the father under the Probate Code and for the “purpose of inheritance” under three exclusive circumstances: (1) when the child is born or conceived before or during the marriage of its father and mother; (2) when paternity is established by the involuntary proceedings under

Chapter 13 of the Texas Family Code; or (3) when the biological father executes a voluntary statement of paternity under

Section 13.22 of the Texas Family Code. Parental Inheritance Act, ch. 713, § 42, 1979 Tex.Gen. Laws 1743, amended by Illegitimate Children — Parental Inheritance Act, ch. 464, § 1, Vernon’s Tex.Sess.Law Serv. 4085-86. See also Mills v. Edwards, 665 S.W.2d 153, 154-55 (Tex.App. — Houston [1st Dist.] 1984, no writ); Batchelor v. Batchelor, 634 S.W.2d 71, 72-74 (Tex.App. — Fort Worth 1982, writ ref’d n.r.e.).

While the Probate Code sets forth a comprehensive system for the settlement, partition, and distribution of property incident to an estate, “neither wrongful death nor survival actions are, or were intended to be, matters appertaining to or incident to estates.” Seay v. Hall, 677 S.W.2d 19, 23 (Tex.1984); see also TEX.PROB.CODE ANN. § 5A(b) (Vernon Supp.1988). Wrongful death benefits attach to those classes of persons identified by the Act who suffer injury as a result of the death; wrongful death benefits do not belong to the decedent’s estate. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 632 (Tex. 1986).

Moreover, “[t]he action for wrongful death is purely statutory and does not inure to the benefit of the children of a deceased by reason of inheritance.” Go Inti, Inc. v. Lewis, 601 S.W.2d 495, 498 (Tex.Civ.App—El Paso 1980, writ refd n.r. e.). Unlike the Workers’ Compensation statutes, the Wrongful Death Act has no express or implied reference to the inheritance or descent and distribution provisions of the Probate Code. See TEX.REV.CIV. STAT.ANN. art. 8306, § 8a (Vernon Supp. 1988). Additionally,

section 71.010 of the Act expressly provides for the division of damages to be determined by the jury, not by descent and distribution laws. TEX. CIV.PRAC. & REM.CODE ANN. § 71.010 (Vernon 1986). We hold that “children,” in the Wrongful Death Act, means filial descendants. As noted previously, when this case went to trial,

section 42(

b) of the Probate Code provided only three means by which an illegitimate child could inherit through his or her paternal kindred. Since that time,

section 42(

b) has been amended to provide an additional procedure whereby illegitimate children may petition the probate court to determine their right of inheritance from the paternal kindred. TEX. PROB.CODE § 42(b) (Vernon Supp.1988). Upon a showing by clear and convincing evidence that a person is indeed the biological offspring of the father, that person is entitled to inherit through his or her paternal kindred, both ascendants and descendants. This amendment to the Probate Code shows that the legislature recognizes that illegitimate children should not be punished for circumstances in which they were born.

The legislature has applied the clear and convincing evidence standard for illegitimate paternity questions in both the Probate Code and the Family Code. TEX. PROB.CODE ANN. § 42(b) (Vernon Supp. 1988); TEX.FAM.CODE ANN. § 13.05(b) (Vernon 1986). For consistency we therefore adopt the clear and convincing evidence standard for an illegitimate person to establish paternity under the Wrongful Death Act. . Turning to the no evidence point, considering only the evidence and inferences that support the finding of the jury and disregarding all evidence to the contrary, King v.

Bauer, 688 S.W.2d 845, 846 (Tex. 1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), we hold that there is some evidence to support the jury's finding that the children were the biological children of Jenkins. Contributory Negligence We next consider whether the court of appeals properly reversed the trial court on the basis that it was error not to submit to the jury the question of Jenkins’ alleged contributory negligence. All controlling questions properly raised by the pleadings and evidence must be submitted to the jury. Tex.R.Civ.P. 278; Garza v. Alviar, 395 S.W.2d at 824.

The defense of contributory negligence requires findings that the victim was negligent and that the victim’s negligence was a proximate cause of the injury or damages. See Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 989 (1949). Under Texas law, proximate cause encompasses the elements of cause in fact and foreseeability. Williams v. Steves Indus. Inc., 699 S.W.2d 570, 575 (Tex.1985). Cause in fact means that the negligent act at issue was a substantial factor in producing the injury, and without such negligence no harm would have resulted. Nixon v. Mr.

Property Management Corp., 690 S.W.2d 546, 549 (Tex. 1985). Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the danger of his act to others. Id. at 549-50. However, foreseeability does not require that the actor foresee the particular accident or injury which in fact occurs. Trinity River Auth. v. Williams, 689 S.W.2d 883, 886 (Tex.1985). Nor does foreseeability require that the actor anticipate just how the injury will grow out of a particular dangerous situation. Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970).

All that is required is that the injury be of such a general character as might reasonably have been anticipated and that the injured party be so situated with relation to the wrongful act that injury might reasonably have been foreseen. Motsenbocker v. Wyatt, 369 S.W.2d 319^ 323 (Tex.1963) (citing Carey v. Pure Dis-trib. Cory., 133 Tex. 31, 124 S.W.2d 847, 849 (1939)). See also W PROSSER & W. KEETON, THE LAW OF TORTS, § 43 at 299 (5th ed. 1984) (citing, among other cases, Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957)).

In Motsenbocker, parents of a 5V2 year-old child left her and her younger brother unattended for approximately one hour. The child and her brother wandered off to a nearby park or playground where they met Mr. Motsenbocker and his young son who were engaged in flying a kite. Mr. Motsenbocker undertook to return the children to their home. It was during the course of this undertaking that the child was injured. When Motsenbocker told the children he would take them home, he instructed them and his four year-old son to go to his car and wait for him until he brought in the kite they had been flying.

After the children got in the car, one of them must have turned the key which caused the car to start backing down the incline on which it was parked. Id. The child in question, in attempting to get out of the car, fell under the wheels and was injured. In Motsenbocker, this court addressed the issue of foreseeability as it related to a jury’s finding that the injured child’s parents were contributorily negligent. The court held that the parents of a young child could reasonably foresee that the negligent act of leaving their child unattended could result in the child being struck by a car.

It did not matter that the exact way the child was struck was unusual because the general nature of the injury was not. Id. at 323-24. In this respect, Motsenbocker is analogous with the present case. Jenkins’ injury was foreseeable, even though the manner in which it occurred was unusual. The evidence at trial revealed that Jenkins had been warned not to ride the platform because it was not safe for use as a personnel elevator. Furthermore, there was evidence that Jenkins had told an Edwards employee prior to the accident that the hoisting mechanism was not properly secured.

Notwithstanding the warning and Jenkins’ own subjective awareness that the hoisting mechanism was not installed correctly, Jenkins boarded the platform. Arguably, “but for” Jenkins’ negligence, he would not have been killed. Reasonable minds can differ as to whether Jenkins was contributorily negligent. From all the evidence, a jury could infer that Jenkins could reasonably foresee all the dangers involved in riding the freight elevator. Thus, we agree with the court of appeals that there is some evidence that Jenkins’ presence on the platform was a proximate cause of his death.

It was therefore error for the trial court not to have submitted this issue. The judgment of the court of appeals is affirmed. KILGARLIN, J., concurs. SPEARS, J., concurs and dissents, joined by CULVER, J. ROBERTSON, J., concurs and dissents, joined by RAY and MAUZY, JJ. . In an unpublished opinion, which we have ordered published, the court of appeals dealt with Edwards’ remaining twenty-one points of error. .

Under Tex.Civ.Prac. & Rem.Code Ann. § 33.011(4) (Vernon Supp.1988), the new comparative responsibility statute, the fact finder is no longer to apportion negligence that caused the occurrence nor to apportion the percentages of causation of the plaintiffs injuries.

If the new statute were applicable to this case, arguably, this would require a reduction of Jenkins’ award according to his "percentage of responsibility.” The statute defines "percentage of responsibility” as “that percentage attributed by the trier of fact to each claimant [and] each defendant... with respect to causing or contributing to cause in any way, whether by negligent act or omission ... [or] by other conduct or activity violative of the applicable legal standard ... [the] death ... for which recovery of damages is sought.” (emphasis added).